FEDERAL MAGISTRATES COURT OF AUSTRALIA
HENNIGAN v FUTURIS AUTOMOTIVE INTERIORS (AUST) PTY LTD	[2010] FMCA 39	

INDUSTRIAL LAW – Unlawful dismissal – application dismissed.	

Workplace Relations Act 1966 (Cth), ss.240, 659, 663 & 664
Workplace Relations Regulations 2006 (Cth), reg.12.8	

Applicant:	Peter James Hennigan	

Respondent:	Futuris Automotive Interiors (aust) Pty Ltd	

File Number:	ADG 65 of 2009	

Judgment of:	Simpson FM	

Hearing date:	15 September 2009	

Date of Last Submission:	15 September 2009	

Delivered at:	Adelaide	

Delivered on:	28 January 2010	

REPRESENTATION
Counsel for the Applicant:	Self-represented	

Counsel for the Respondent:	Mr Short	

Solicitors for the Respondent:	Minter Ellison	

ORDERS
(1)	The Application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Adelaide	
ADG 65 of 2009
Peter James Hennigan	
Applicant

And

Futuris Automotive Interiors (aust) Pty Ltd	
Respondent

REASONS FOR JUDGMENT
1.	I have before me an application for unlawful dismissal brought by the applicant, Peter James Hennigan (“Mr Hennigan”) against his former employer, Futuris Automotive Interiors (Aust) Pty Ltd (“the Company”).  Mr Hennigan alleges that he was unlawfully dismissed on 5 December 2008.  The Company says that Mr Hennigan was lawfully terminated on the basis of redundancy.  Mr Hennigan says that the real and unlawful reason for the termination was his temporary absence from work because of illness or injury.
The legislation
2.	Section 659 of the Workplace Relations Act 1966 (Cth) (“the Act”) provides:
	(1)	…
	(2)	Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
	(a)	temporary absence from work because of illness or injury within the meaning of the regulations;
	(b)	….
3.	Section 664 of the Act provides as follows:
	In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
	(a)	it is not necessary for the employee to prove that the termination was for a proscribed reason; but
	(b)	it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).
4.	Section 663(1) of the Act provides as follows:
	Subject to subsection (5), an employee may apply under this section to the Court for an order under section 665 in respect of an alleged contravention of one or more of sections 659 and 660 by his or her employer.
5.	Regulation 12.8 in Chapter 2 of the Workplace Relations Regulations 2006 (Cth) (“the Regulations”) provides as follows:
	(1)	For paragraph 659 (2) (a) of the Act, an employee’s absence from work because of illness or injury is a temporary absence if:
	(a)	the employee provides a medical certificate for the illness or injury within:
	(i)	24 hours after the commencement of the absence; or
	(ii)	such longer period as is reasonable in the circumstances; or
	(b)	the employee:
	(i)	is required by the terms of an industrial instrument to:
(A)	notify the employer of an absence from work; and
(B)	substantiate the reason for the absence; and
	(ii)	complies with those terms; or
	(c)	the employee has provided the employer with a required document in accordance with section 254 of the Act.
	(2)	…
	(3)		In this regulation:
	medical certificate has the meaning given by section 240 of the Act.
6.	Section 240 of the Act defines ‘medical certificate’ to mean “a certificate signed by a registered health practitioner”.
Evidence relied upon
7.	The applicant relies on his Affidavit sworn on 17 March 2009 and filed on 18 March 2009.
8.	The respondent relies upon the following affidavit material:
a)	Affidavit of Belinda Grant sworn on 6 April 2009 and filed on 15 April 2009.  Ms Grant was at all relevant times employed by the respondent as Human Resources Manager.
b)	Affidavit of Anton Jukic sworn on 28 August 2009 and filed on 31 August 2009.  Mr Jukic was at all relevant times employed as Product Group Manager with the respondent.
c)	Affidavit of Peter Fagan sworn on 15 September 2009 and handed up at the hearing.  Mr Fagan was at all relevant times employed as Technical Manager in South Australia with the respondent.
d)	Affidavit of Neil Cordon affirmed on 30 August 2009 and filed on 31 August 2009.  Mr Cordon was at all relevant times employed as Quality Manager with the respondent.
e)	Affidavit of Richard Begg sworn on 28 August 2009 and filed on 31 August 2009.  Mr Begg was at all relevant times employed as Quality Engineer with the respondent.
9.	Oral evidence was given by the applicant, Ms Grant, Mr Jukic, Mr Fagan, Mr Cordon and Mr Begg.
Findings and reasons
10.	In these Reasons statements of fact are findings of fact made by me on the balance of probabilities having regard to the evidence and my observations of the parties and other witnesses.
11.	The applicant commenced employment with the respondent on 21 July 2003.  He was employed as a Quality Technician.
12.	In late October / early November 2008 the applicant was absent from work for one or two days.  He did not advise the respondent that he would be absent, although company policy required that he do so.  The applicant says that he believed that he was able to take these days off work as they were “non-production days”.  The applicant was cross-examined on the question of what non-production days were and conceded that these were non-production days for shop floor employees and that he was not a shop floor employee and it was therefore not a non-production day for him.
13.	On the applicant’s return to work he had a meeting with his superiors, Mr Begg and Mr Cordon.  Mr Cordon raised the topic of the applicant failing to contact the Company to advise that he would be away from work for two days.  In response to Mr Cordon’s further questions the applicant said that not only was his mobile phone broken but so were the home phone and his wife’s mobile phone.  Mr Cordon was annoyed with this response and said words to the effect of “You’re taking the piss”.  Nothing further was said about the topic.
14.	The applicant had further time off work on 3 and 4 December 2008. On this occasion he made phone calls to both Mr Begg and Mr Cordon to advise that he would not be attending work as he was “in hospital and in a lot of pain”. The applicant says that he hurt his back at work on 19 November 2008 while lifting some replacement seats from Holden’s manufacturing plant. As it transpired the pain that the applicant experienced on 3 December 2008 was not as a result of any problem with his back but kidney stones. The applicant received treatment for kidney stones and was away from work for the two days mentioned.
15.	3 December 2008 was a significant day for the respondent’s employees.  The Company had come to realise in the second half of 2008 that there was a downturn in business and that they would need to make certain of its staff redundant.  Mr Fagan and Ms Grant were two of the managers of the respondent’s operations that were heavily involved in implementing the redundancy strategies.  I accept as true the evidence that each of them has given.
16.	Mr Fagan says that as well as being Technical Manager in South Australia he is also a member of the Company’s strategic management team which meets regularly to consider and develop corporate strategies on a range of matters relating to the South Australian area of the Company, including its financial performance and structure. He says that he was involved in the re-structure which required that the Company’s South Australian professional staff group be reduced by one third. Staff levels in the Company’s Quality Department, in which the applicant worked, was to be reduced by over fifty per cent from fifteen to six professional staff. One of Mr Fagan’s responsibilities was to identify who of the existing Quality Department employees would be retained for employment in the new structure and who would be made redundant.
17.	In selecting which Quality Department employees would be retained Mr Fagan looked to each employee’s skills and attitude to work.  He considered his or her ability to be flexible and able to adapt to a more varied role than that which he or she may currently be performing.  He had discussions with Mr Cordon about each of the employees in the Quality Department to get Mr Cordon’s views on how each of the employees measured up against these criteria.  Mr Fagan did not disclose to Mr Cordon at that stage who would be retained and who would be made redundant.
18.	Mr Fagan says that once he had determined which employees he thought should be retained, he informed Mr Mark Coupe (Operations Manager) and Ms Grant of his recommendations.  The recommendations were approved and the list was finalised.
19.	Mr Fagan says that the reason that the applicant was made redundant was because he did not rate amongst the top six Quality Department professional employees when assessed against the criteria that were to be determined. Mr Fagan stressed that the applicant’s health and/or alleged back pain were not factors in his decision.  In fact, he was unaware of any complaint that the applicant had made about back pain until around mid-August 2009 when he was discussing the applicant with Mr Jamie Getgood (the then Human Resources Manager). Mr Fagan also points out that as so far as Mr Hennigan’s absence from work on 3 and 4 December 2008 is concerned, he understood that this was as a result of painful kidney stones and that, in any event, the decision about who was to be made redundant had been finalised well prior to those days.
20.	Ms Grant says that as Human Resources Manager for the respondent in 2008 she had responsibility for all human resource functions in South Australia, including recruitment and retrenchment.  She says that she was closely involved in the restructure which led to the termination of the applicant’s employment on the ground of redundancy.
21.	Ms Grant says that the Company experienced a dramatic downturn in its financial performance over the second half of 2008 and that as a consequence the Company had experienced lower volumes, delay and cancellation of customer programs from around October 2008. She says that as soon as the trend was identified the respondent started to review the operational cost of its South Australian business to realign costs with the lower volume forecast. She says that part of the review included developing a new organisational structure with a view to reshaping the business to focus purely on the basic manufacturing function. She says that as a consequence of the restructure the Company reduced its professional staff from sixty-five as at October 2008 to forty-one in December 2008. The Company’s Quality Department was reduced from fifteen professional staff to just six professional staff.
22.	Ms Grant says that the applicant was selected for redundancy as a consequence of a selection process designed to ensure that the most suitable candidates were retained for the new structure and roles. The selection process was based on an assessment of the Company’s existing employees’ skills, experience and attributes against the responsibilities and expectations of the positions required for the new structure. She says that the Company therefore focussed on three key criteria: firstly, the employee’s core technical skills (as required by the relevant positions); next, proven communication and leadership skills; and finally, a demonstrated willingness and ability to cross-skill and adapt to change. The applicant was selected for redundancy applying those criteria. No issues relating to the applicant’s health were part of the decision-making process. She says that until the applicant filed proceedings in the Australian Industrial Relations Commission alleging that he had been unfairly dismissed she was unaware that the applicant had any history of back pain.
23.	On the material before me I am satisfied on the balance of probabilities that the respondent terminated the applicant’s employment on the basis of redundancy and that there was no “proscribed reason” as set out in s.659(2) of the Act for the applicant’s termination. I further find that the proscribed reason that the applicant relied upon for his cause of action, namely “temporary absence from work because of illness or injury” within the meaning of the Regulations is not made out as there was no “temporary absence” within the meaning of Reg. 12.8 of Chapter 2 of the Regulations. There was no temporary absence by the applicant as there was no occasion when the applicant provided a medical certificate for illness or injury within twenty-four hours after the commencement of the absence or otherwise as is required by the regulation.
24.	The application should be dismissed.
25.	I make the orders to be found at the commencement of these Reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate:  Ms N. Julius

Date:  28 January 2010